1. Decisions of the Federal Social Court of 14 June 2018 and 9 August 2018 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 14.06.2018 – B 14 AS 37/17 R
Basic income support for job seekers – consideration of income – child housing benefit – consideration as income for the child despite the parent's entitlement to housing benefit – excess child benefit – crediting against the income of the person entitled to child benefit
Guiding principle (Editor):
1. The housing benefit (child benefit) granted to the plaintiff for her son must be considered as income for the son. This follows from systematic connections within the Housing Benefit Act (WoGG) and its relationship to the Social Code, Book II (SGB II).
2. The excess child benefit must be fully considered as income for the plaintiff. Section 1612b of the German Civil Code (BGB) (covering cash needs with child benefit) does not preclude this, as it is a purely maintenance-related provision which, moreover, according to the case law of the Federal Court of Justice (BGH, judgment of December 14, 2016 – XII ZB 207/15), can lead to a claim for reimbursement by the child, just as under Section 74 of the German Income Tax Act (EStG).
Source: www.bsg.bund.de
1.2 – BSG, Judgment of 09.08.2018 – B 14 AS 32/17 R
Basic income support for job seekers – Exclusion of benefits for foreigners residing for the purpose of job seeking – Social assistance – Assistance for living expenses – Exclusion of benefits for those eligible in principle under the German Social Code, Book II (SGB II) – Applicability of the EU Agreement – Permitted residence – Exclusion of benefits pursuant to Section 23 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII) – Granting of benefits pursuant to Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII) – Reduction of discretion to zero for stays exceeding six months
Guiding principle (editor)
of the Federal Social Court (BSG) on social benefits for EU foreigners: Social assistance even without a right of residence.
Source: www.bsg.bund.de
2. Decisions of the Federal Social Court of 25 October 2018 on asylum law
2.1 – Federal Social Court (BSG), Judgment of 25 October 2018 – B 7 AY 2/18 R
Guiding principle (Editor):
1. Section 44 of the Social Code, Book One – General Part – is neither directly nor analogously applicable in the Asylum Seekers' Benefits Act (AsylbLG), because there is no unintended regulatory gap.
2. However, the plaintiffs are entitled to interest on the higher accommodation costs from the date the original lawsuits were filed, pursuant to Section 291 of the German Civil Code (BGB). Considering the legislature's understanding of the Asylum Seekers' Benefits Act (AsylbLG) as a core piece of immigration law, the Senate concurs with the Federal Administrative Court's (BVerwG) jurisprudence that interest on public-law monetary claims is payable unless the relevant specialized law – in this case, the AsylbLG – provides otherwise.
Source: www.juris.de
2.2 – Federal Social Court (BSG), Judgment of 25 October 2018 – B 7 AY 1/18 R
Guiding principle (Editor)
On the question of granting additional needs allowances to single parents of asylum seekers.
Principle (Editor)
1. The life circumstances of single parenthood are, in principle, also relevant for securing the livelihood of those receiving benefits under the Asylum Seekers' Benefits Act (AsylbLG). With regard to this situation, it cannot be determined per se that specific reduced needs arise from a short-term, non-permanent stay in Germany. However, it is permissible, in principle, to grant such needs to those receiving benefits under the AsylbLG not through a lump-sum payment, but only based on concrete, identifiable needs, and generally as benefits in kind. The plaintiff, however, has not asserted any specific needs.
Source: www.juris.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Saxon State Social Court, Judgment of 14 September 2018 – L 7 AS 1167/15
The guiding principle (editor)
of the concept of the state capital Dresden regarding accommodation needs has been essentially confirmed.
Court Note:
1. In the opinion of the State Social Court, the concept underlying the Dresden City Council resolution of May 30, 2013, laid down in the IWU II of March 27, 2013, and applicable according to the wording of the resolution for periods from January 1, 2013, onwards, also fundamentally fulfills the requirements for a "conclusive concept" as defined by the Federal Social Court's jurisprudence. Therefore, the following limits of reasonable rent (gross rent excluding utilities according to IWU II) remain in effect: One-person household: €304.79, two-person household: €377.61, three-person household: €454.11, four-person household: €522.31, five-person household: €630.51.
2. Contrary to the Social Court's opinion, the inconsistency of IWU I and IWU II does not arise from the fact that, in determining the advertised rents, the new contract rents from the rent index data set of the qualified rent index were inflated using the rent price index in the consumer price index for the state of Saxony.
3. The State Social Court did not allow the appeal – unlike in its first decision regarding accommodation costs in Dresden.
Source: socialcourtsability.de
3.2 – North Rhine-Westphalia State Social Court, Judgment of 06.09.2018 – L 7 AS 744/17
Unemployment benefit II – Accommodation and heating costs – Determination of living space requirements for temporary households – Exercise of visitation rights – Individual case review –
Guiding principle (Editor):
1. The question of whether an additional housing need can be assumed in the case of a temporary shared living arrangement depends decisively on the circumstances of the individual case. A greater housing need can only be recognized in exceptional cases, such as when the living conditions are otherwise clearly unsuitable for the child/children to visit; this is not the case here.
2. For the plaintiff's right of access to his four-year-old daughter (visits on two weekends per month), a living space of a maximum of 50 m² is sufficient.
3. In this situation, the need for a larger apartment does not arise from the requirement to provide a separate children's room for the child. Especially with younger children, the need for physical separation between the parent and child during visits is limited to the evening and night hours when the child is asleep. The child's sleep can easily be ensured in the parent's bedroom. It is neither customary nor in the child's best interests for the child to be alone in a separate children's room during the day. Additional storage space is not required, as spare clothes and toiletries for a young child's weekend visits can easily be stored in the bedroom and bathroom. Bulky items, such as bicycles, musical instruments, etc., can also be regularly stored in a single-person household over the weekend, or, if necessary, picked up and stored in the nearby apartment of the child's mother (regarding the distance criterion of the other parent's apartment, see the decision of the Higher Social Court of North Rhine-Westphalia of June 17, 2008 – L 20 B 225/07 AS ER; similarly, the decision of the Higher Social Court of Schleswig-Holstein of August 4, 2010 – L 11 AS 105/10 B PKH).
Source: socialcourtsability.de
3.3 – State Social Court of Saxony-Anhalt, decision of 17 September 2018 – L 4 AS 414/18 B – legally binding
Matters under the German Social Code, Book II (SGB II) – Lawyers' fees
Principle (Juris)
1. If, in basic income support law under the German Social Code, Book II (SGB II), a legal question (division of housing and utilities costs) is (co-)subject to dispute over several benefit periods and the benefit provider issues several decisions for the different periods, it is generally not to be assumed that the same matter exists within the meaning of Section 15 Paragraph 2 of the Lawyers' Fees Act (RVG).
2. If the benefit provider has issued several separate decisions and the Social Court also saw no reason to combine the pending proceedings, there is no basis for alleging that the authorized representative arbitrarily divided a single set of circumstances into several procedural mandates.
Source: socialcourtsability.de
3.4 – State Social Court of Saxony-Anhalt, decision of 07.09.2018 – L 4 AS 312/18 NZB – legally binding
Unemployment Benefit II – Accommodation and Heating – Heating Cost Reimbursement – Coverage of only reasonable heating costs during the billing period – Saving a portion of the heating cost prepayment from the standard benefit – Reduction of benefits for accommodation and heating
Guiding principle (Editor):
1. Only with the amendment of Section 22 Paragraph 3 of the German Social Code, Book II (SGB II) on August 1, 2016, are not only repayments relating to household energy costs, but also those relating to unrecognized expenses for accommodation and heating disregarded. The new regulation does not claim any retroactive effect (cf. Federal Social Court [BSG], judgment of June 14, 2018 – B 14 AS 22/17 R; similarly, Senate judgment of December 1, 2016 – L 4 AS 610/15).
Source: socialcourtsability.de
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Hamburg Social Court, decision of 09.10.2018 – S 28 SO 409/18 ER
Guiding principle (Editor)
1. No per capita principle for accommodation costs when the partner is excluded from benefits due to inpatient care in a nursing home.
Principle (Editor)
1. There is no basis for applying the per capita principle, even with regard to the plaintiff's husband, who lives in a nursing home. According to the Federal Social Court's (BSG) jurisprudence, the division of accommodation and heating costs according to the per capita principle requires that the apartment be shared with other persons, i.e., that it cover the current accommodation needs of other persons. This requirement is not met if a member of the household does not use the apartment for a period that would also lead to an exclusion from benefits under Section 7, Paragraphs 4 and 4a of the German Social Code, Book II (SGB II) (see BSG judgment of April 16, 2013, B 14 AS 71/12).
Source: socialcourtsability.de
5. Decisions of the social courts on asylum law
5.1 – Social Court Landshut, decision of 17 October 2018 – S 11 AY 153/18 ER
Application for social benefits for an asylum seeker without entitlement restrictions – reduction of benefits requires specific misconduct on the part of the beneficiary
Guiding principle (Editor)
1. Due to an unlawful entry, a restriction pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) is only possible for a maximum of six months if, thereafter, remaining in Germany is not unlawful due to a residence permit.
Principle (Editor):
1. Insofar as Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), at least according to its wording, provides for a restriction of benefits without reference to misconduct, this contradicts the existing sanctions system in both the AsylbLG and the basic income support for jobseekers (Book Two of the Social Code – SGB II) and social assistance (Book Twelve of the Social Code – SGB XII), according to which the reduction of benefits always requires specific, reprehensible conduct or omission on the part of the benefit recipient. Accordingly, the benefit recipient must be able to avoid or terminate a benefit reduction themselves (cf. Bavarian State Social Court, decision of September 17, 2018 – L 8 AY 13/18 B ER).
2. After the expiry of the first sanction for a period of six months, no further sanction is possible in this case. Due to the unlawful entry, a restriction pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) is only possible for a maximum of six months (Section 14 Paragraph 1 AsylbLG). Furthermore, Section 14 Paragraph 2 AsylbLG does not permit any temporary successive restrictions on entitlement; the provision does not provide a legal basis for permanent restrictions on entitlement (Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 2nd ed. 2014, Section 14 AsylbLG 1st revision, marginal note 14; contra: Higher Social Court of Berlin-Brandenburg, decision of September 20, 2018 – L 23 AY 19/18 B ER -).
3. It is therefore unnecessary to decide here whether the applicant is prevented from leaving the country because of the father of the third child and whether, in the case of Italy, subsistence benefits must be granted in full in preliminary legal protection proceedings simply because deportation to another EU state is not possible due to the threat of inhuman and degrading treatment there within the meaning of Article 3 ECHR (see Social Court Lüneburg, decision of June 6, 2017 – S 26 AY 10/17 ER –; doubts about the constitutionality Social Court Munich, S 42 AY 114/18 ER).
Source: socialcourtsability.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Note on: Federal Court of Justice, 3rd Civil Senate, Judgment of 02.08.2018 – III ZR 466/16
Author: Prof. Dr. Gabriele Nellissen
Publication date: October 25, 2018
Requirements for a consultation according to § 14 SGB I
Guiding principle:
On the requirements for the duty of the social assistance provider to provide advice pursuant to Section 14 of the German Social Code, Book I (SGB I), when applying for ongoing basic income support benefits due to reduced earning capacity, an urgent need for advice on pension insurance law is apparent.
Further information: www.juris.de
6.2 – Saxon Higher Administrative Court of 25 October 2018 – Case Nos.: 5 A 51/16.A, 5 A 1150/17.A
No refugee protection for asylum seekers from Libya.
The Higher Administrative Court of Bautzen has ruled that asylum seekers from Libya are not entitled to subsidiary refugee protection.
In two separate proceedings, the Federal Office for Migration and Refugees (BAMF) rejected the asylum applications of two asylum seekers from Libya (plaintiffs). The BAMF also denied the plaintiffs refugee status and subsidiary protection. Furthermore, the BAMF determined that no grounds for prohibiting their deportation existed. They were ordered to leave the country and threatened with deportation to Libya.
The lawsuits filed by the plaintiffs with the Administrative Courts of Leipzig and Dresden were unsuccessful.
The Higher Administrative Court of Bautzen has rejected the plaintiffs' appeals against the judgments of the administrative courts.
Further information: www.juris.de
6.3 – Hartz IV recipient from Göttingen faces homelessness – her lawyer Sven Adam settles accounts with the authorities
Adam accuses the Göttingen district of having set the housing costs for Hartz IV recipients too low.
Read more at: www.huffingtonpost.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
